Card Range To Study

226 Cards in this Set

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champion v ames, Hoke v US

commerce prohbiting power

Hipolite egg

Mislabeled Eggs that had passed out of commerce could be seized.c. Court can seize things after they have passed out of commerce, if they violated the commerce prohibiting power. Extension of the N& P clause means that seizing things that had previously moved in IC through the C/I is an appropriate means to prevent the movement

hammer v dagenhart

Intrinsic harm test, overruled by Darby

Super boot strap

Congress can adopt appropriate aids to effectuate the prohibition on interstate transport of goods including the ban on production of those goods

US v Darby-

1. No transport of goods across state lines which were from under paid workers-Overruled Hammer. CP can be applied to this situation
2Employers must comply if they are making goods for interstate transport-
a.Affecting commerce- workers/wages & hours have a sub effect on ICC
b.Channels/super bootstrap-Congress can adopt appropriate aids to effectuate the prohibition on interstate transport of goods-

US v Sullivan-

Congress can prohibit the movement of drugs labeled in violation of federal standards and to effectuate that prohibition, ban the post-shipment labeling even by a pharmacist who had not been involved in interstate commerce himself. Sufficient that the drugs had gone through interstate commerce & were being held for future sale

Super channels theory-

- Congress can regulate behavior involving any object that has previously crossed a state line in commerce-

US v Bass-

Court read federal law prohibiting receipt of a gun by a convicted felon narrowly to apply only when gov’t demonstrated the firearm had passed through interstate commerce

Scarborough v US-

- Court upheld federal ban on gun possession by felons that required minimal nexus that the firearm have been at some time in interstate commerce

Not clear what Lopez will have, but the talk about the jxnional nexus is interesting-
i. Us v McCoy- 9th circuit struck down a law banning possession of kiddie porn that had been made by something that had previously moved in interstate commerce. Too broad of an application-

Swift & Co v US

Sherman antitrust action against meat packing firms that were fixing prices. Congress can regulate intrastate activities like price fixing b/c the goods regulated are in the stream of interstate commerce

Stafford v Wallace-

- Court upheld a law dealing with the stockyards b/c they were a mere conduit of interstate commerce- Cows were in commerce

Schechter Poultry v United States-

2 NY chicken markets are prosecuted from violating wage and hours rules; 96% of the poultry had been purchased from out of state but it was intended only for local resale (Unlike Swift where the cows were destined for interstate travel)
1. In commerce-Congress can not regulates goods after they have left the stream of commerce

Carter Coal v Carter

-( In commerce theory/affecting commerce)- Congress regulated the causes of the labor discord in the coal industry via the Bituminous Coal Conservation Act on the theory that the industry was the source of a lot of commerce in the US
1. IN commerce- Congress can not regulate goods that have not entered the stream yet

Currin v Wallace

- Federal statute barred the sale of tobacco at an auction house where farmers generally sold tobacco bound for interstate commerce-
1. Upheld even though some of the tobacco would be used only in intrastate commerce
2. Congress can reach intrastate activities as long as it is controlling things that are in commerce

Mulford v Smith-

Regulation to be effective must and therefore constitutionally may apply to all sales (can’t tell where the tea will end up when it is on the warehouse floor).

US v Yellow Cab Co-

Anomalous case in which that court held that cabs carrying passengers to trains were too unrelated to interstate commerce to constitute a part thereof under the Sherman Act
1. Weird b/c cab ride to the train station is not in commerce but a cab ride mid trip is

Goldfarb v VA State Bar-

Local lawyers conducting residential title searches are acting sufficiently in commerce to come under the purview of the Sherman Act because funds for home purchases frequently come from out of state sources

Reno v Condon

- (in commerce) Court upholds a federal law banning the sale of private information gathered by the state DMV’s. Information was in-commerce.
1. Important to recognize Congresses power to take something in commerce and make it something not in commerce-
2. can be used for the non-commercial purpose of protecting drivers ID’s
3. Also, Congress could ban all transfers of DL info b/c the data destined for intrastate uses is functionally inseparable from data for interstate uses-(mulford)

US v Robertson-

- Rico prosecution under which the gov’t sought to show ∆ has invested proceeds of drug activities in an Ak gold mine which “engaged in or affected commerce”
1. Court sidestepped affecting commerce argument by regulating under the in-commerce theory b/c mine had purchased equipment in ca, hired workers from out of state

US v EC Knight & Co(Affecting Commerce)-

)- Congress tried to bust a monopoly against EC Knight who controlled 98% of the nations sugar refining under the Sherman Act. Developed the Indirect/direct approach. Court adopts a categorical rule: Production can not be regulated under the CC

Alton Railroad

- Court says that the connection between government mandated pensions & efficient interstate train service is too tenuous

Schecter poultry-

- Affecting commerce- Link b/w minimum wage laws and stimulation of the national economy was not direct enough. Extraordinary problems do not create or enlarge constitutional power

Carter Coal- Affecting commerce

This is a purely local activity and the link is too indirect. Production can not be regulated under the affecting commerce theory

Addyson Pipe & Steel Co v United States-

- Price fixing could be prosecuted under the Sherman act. Price fixing = direct and immediate effect on commerce

Northern Securities v US-

- Acquisition of corporate securities that threatened to lower competition in interstate train rates was not ok.

Shreveport rate case-

Challenge to Congressional act setting rates for RR freights. Act was aimed at leveling interstate rates but affected purely intrastate rates
i.Congress’s power to regulate instrumentalities of interstate commerce extends to intrastate matters having such a close relationship relation to interstate traffic that the control is essential or appropriate to the maintenance of conditions under which interstate commerce may be conducted on fair terms
ii. There is also a power to foster and protect interstate commerce

NLRB v Jones & Loughlin Steel-

NLRA can regulate labor relations in a plant operated by one of the nations largest steel companies. Congress may regulate these activities which despite their intrastate character had such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions

NLRB v Friedman Harry Marks Clothing-

- Court upholds regulation even though the manufcaturer in this case was very small and did little interstate business. Essentially a repeal of Schechter poultry

Aggregation-

Congress can consider the overall effect of allowing the practice in order to determine if there is a substantial/close relation to IC

Wickard v Filburn-

- Congress can regulate each individual member of a group, even if each individuals effect on commerce was de minimis, so long as the activity of that individual “taken together with that of many others is far from trivial”

Heart of Atlanta Motel v US

75 % of occupancy from out of state guests & advertised in national media b/c D by hotels impedes interstate travel. Aggregation technique: Racial D discourages interstate travel, which in the aggregate affects interstate travel

Ollie’s Barbeque (Katzenbach v. McClung)

)- Court upholds CRA 1964 to a BBQ restaurant that had obtained 46% of its meat from out of state retailers, despite very little out of state people ate at the restaurant. Aggregate the effect of D in restaurants on travelers overall, and on commerce therefore

Hodel v Va Surface Mining and Reclamation Ass’n

Challenged Congressional power over a mining operation on the ground that the Commerce Clause didn’t extend to the use of private lands within the borders of states. Law upheld- surface mining operations can affect the utility of land, which burdens commerce. Also downstream pollution

Perez v US-

- Even though this ∆ did not have ties to mafia, the loan sharking business provided a lot of the money to the mafia which affected IC and thus could be regulated by C

US v Lopez-

1. No economic activity: This= criminal statute: state can’t prohibit activity that is solely criminal in nature and has no economic ties. Can’t aggregate non-economic activity.
2. No jurisdictional element- There is no requirement that the gun be used in interstate commerce or have previously traveled in interstate commerce
3. No comprehensive scheme: This might be okay if it was a part of a larger comprehensive scheme that dealt with an economic activity
4. Kennedy Concurrence Court should tread lightly when intruding upon an area that has traditionally been controlled by the state

US v Morrison

- Challenge to the Violence Against Women Act which allowed for civil damages remedy for gender related violence-
1. Rape is a non-economic activity, so the Court can not aggregate its effects
2. No jurisdictional element tying the crime to interstate commerce
3. Here there are formal findings of fact claiming that violence against women affects IC commerce
a. Congresses findings would apply to all violent crimes and therefore encroach too far into state law-
b. Here the violence is not aimed at the instrumentalities, channels, or goods involved in interstate commerce so it must remain the province of the States to regulate

Migratory Bird Case-

Army Corps of Engineers interpreted water under Clean Water Act as including any places where migratory birds might travel. Allowed ACE to prevent filling of local waste ponds b/c migratory birds might land there
a. Narrow reading tool: court reads CWA narrowly to say that ACE didn’t have the authority to do this ( exceeded the statutory rule making powers) & thus avoided C’al Q-If Congress really wanted to interfere with

Citizens Bank v Alafabco-

- Court upheld application of the federal Arbitration act to a dispute about a local commercial loan transaction entered into in part to get funds for out of state uses and secured in part by goods assembled from out of state parts and raw materials. This is an economic activity so it can still be regulated under the affecting commerce prong using the aggregation technique

Gonzales v Raich-

- Challenge to the Ca medical mj law. In conflict with the Controlled Substance act-
a. Within the Class of activities of Perez
b. Aggregate effects: Like Wickard, mj is fungible , and even if it is not sold there is an effect on supply and demand (But Wickard exempted small farmers)
c. Rational basis test- Congress had a rational basis for determining that local cultivation and use of pot had a substantial effect on interstate commerce
d. Regulate all sales- Problem of enforcement: hard to distinguish b/w medical use and cheating so regulate all (Like Mulford)
f. Comprehensive scheme exception- Regulation of individual growth is part of a larger comprehensive regulation and therefore ok

Coyle limit-

-Federal gov’t can not regulate states in the exercise of their essential powers

National League of Cities-

- Court adopts a three part test- state as states? Indisputably aspects of state sovereignty? Impair the state’s ability to structure integral operations?

Garcia-

Laws of general applicability do not offend the 10th amendment. State autonomy is sufficiently guarded by the Con via its controls over the national gov’t

Garcia exception

- When there is a defect in the federal lawmaking process (must be more than a poor choice by Congress)

SC v Baker-

State was not singled out in a way that made it politically isolated so this was not bad enough to meet the test from Garcia

NY v US

( If the choice is too coercive then it will be no good)

Printz v US-

- Feds can't draft state employees into enforcemnet of a federal law( this would impair separation of powers, has never happened before, and would fail the protection of liberty ( O’Connor limitation- May not stop a demand for information)

Testa v Katt-

All judges swear oath to uphold the Con

Hans v La)

Citizens can’t sue their home states in federal court-

Seminole Tribe v Fl-

Except for cases allowed under §5 of the 14th amendment, Congress can not make state amenable to suit)

Alden v Maine

States can not be sued in state courts for violations of federal rules

Exceptions to SI rule

Injunctions against state officials-
State v State or Federal v State-
Actions against cities/municipalities
14th amendment-
13th amendment-
State can waive-

PENALTY PRINCIPLE for taxes

Congress can impose taxes, even where incidental regulation/restraint results, but can not implement penalties in order to regulate

(Child Labor Tax Case)

Congress can’t do through taxing power what it couldn’t do directly: If Congress could achieve tax’s regulatory effect through other enumerated means, then the fact that it has a regulatory effect is irrelevant, becomes questionable where Congress could not have implemented the regulation directly- WORRY that the tax is disguised regulation

US v Kahringer

IF the tax really raises revenue it will be presumptively valid-
1. Who enforces it?
2. IS it disproportionate?
3.Is it something that is usually taxed?
4. Is there a scienter requirement?
5. Is it a monetary exaction?

Stewart Machinery

OK to allow a credit for companies if the state adopts an unemployment insurance program. This is optional.

SD v Dole-

OK to withhold 5% of funding for highways if the state does not increase DI to 21

Missouri v Holland-

Congress passed a law about the hunting of migratory birds to put the migratory bird treaty into effect. This was N& P to put the treaty into effect
i.Subject matter dealt with in the treaty has a national/international character
ii.May not have been able to pass under the commerce power- hunting birds is not equivalent to economic activity, unless there is a comprehensive scheme, or you can analogize to mining/production

Woods v Cloy Miller-

- Statute prohibits rent inflation after WWII
i. Commerce Clause- Congress could probably do this b/c in the aggregate it has a substantial effect on interstate commerce, and the charging of rent is an economic activity
ii. Congress instead relied on the war power combined with the N & P clause

Eldred v Ashcroft-

- A Copyright clause case. CTEA had extended copyright to 70 years. Challenge the rule as a violation of the perpetual language in the copyright clause. Court says that this 20 year extension is not enough to violate the clause

EX parte McCardle-

COngress got rid of HC for the law and court said No need to ask why they did it they can do it-

Feller v Turpin-

Congress must repeal all of their jxn, here as in Ex parte yeager- The Court retained original jsn

Us v Klein

Congress can’t pass a law telling the court how to examine an issue

Plaut v Spendthrift Farms-

Congress can’t reopen cases-Can’t go behind and change the SOL to allow people to sue

Amar-

All approach- Internal restraints inherent in Art III ensure at least a minimum jxn over those cases that the ct is to hear “all” of: Federal Q, admiralty, public ambassadors

Hart-(

-(core functions approach)- Congress’s power to make exceptions to cts jxn can’t interfere with the core functions of the ct- those for which we want uniformity among states,

Sager(

Constitutional issues are special approach)- There must be some federal judicial forum for the enforcement of federal C rights

Wechsler-

Congress can restrict jxn b/c this is part of the Con, even if it is done for bad reasons,

Bator-

Congress can decide that a class of cases arising under federal law should be litigated in state courts,

Eisenberg-

Lower courts are required if judiciary is to have any meaning-Must at least 1 court

Pike Balancing-Deferential balancing

1. Measure the burden on interstate commerce against the benefits to the health/safety/welfare to the state
BURDEN MUST BE CLEARLY EXCESSIVE IN RELATION TO THE BENEFITS

Transportation cases-

Burden will not outweigh the benefit if the state’s interest is more than illusory(Kassel-)

So Pac v Az-

Law limiting # of train cars is bad b/c of the large need for uniformity and the Ct doubts the state’s interest here ( No leg findings)

SC v Barnwell-

Sc law limiting big trucks is OK. Weight is given to the fact that it affect in staters the same as out of staters-

Minnesota v Clover Leaf Creamery

Ban on plastic milk cartons is ok- In state surrogates, low burden,no lra's

Protectionist laws-

Virtually per se invalid

Export restrictions-

Hughes v OK- Minnow ban bad b/c there were LRA’s, and there are no surrogate reps)

HP Hood-

Ct strikes down a NY law blocking the opening of a milk station that would increase the flow of milk out of NY- this is hoarding and there are no surrogate reps

Milk Control Board v Eisenberg

Minimum price for milk exports had little effect on ICC and it affected only instate people/producers & effect on trade incidental b.c not much milk leaves PA.Local regulation w/ only incidental interstate effects-

- Cities Service Gas Co v Peerless Oil & Gas CO-

Ct uphold IK law that set a minimum price for the sale of natural gas to prevent dissipation of the state’s resources. State’s interest was to conserve gas for all people not just in staters (which would have been bad)

Import restrictions-

Can’t restrict the import of goods that are not toxic in transport

Philadelphia v NJ-

LRA, Quarantine does not apply, no surrogate here

Great Atlantic v. Cotrell.

These can’t be saved by putting a reciprocity requirement for other states, appropriate response when someone will not import your product is to challenge it under the DCC- Great

In state processing requirements-

Probably bad

Dean Milk v Madison-

Milk processing requirement bad- LRE’s, DCC applies to local and state activities. Interest is legitimate, but this is facial D.

Carbone v Clarkstown-

Towns requirement of using its own plant was no good, facially D, was essentially hoarding of waste plants, and there was a LRE (Subsidy to the local plant)

Discriminatory in purpose-

Look to the state’s primary purpose ( leg history)

Hunt v Wa state-

Here the law takes away the comparative advantage of Wa apples and may actually confuse people by using a less specific system. LRE- could use both labels and not SR.

Baldwin v GAF Seelig

Ct strikes down NY law setting minimum price for milk. Essentially takes away the competitive advantage of out of staters.

- Henneford v Silas Mason Co¬-

State’s tax on goods purchased out of state only equalized what they would have paid if they bought it in state w/sales tax. This only takes away an advantage that was imposed by the state and not gained through better business

4 requirements for validity of state tax(Complete Auto Transit Test)

i. Tax must have a reasonable or substantial nexus to the taxing state
ii. Tax must be fairly apportioned
iii. Tax must bear a fair relation to the benefits granted to the taxpayer by the state(loosely interpreted- almost impossible to have something struck down under this)
iv. Tax must not discriminate against interstate commerce

Camps Newfoundland/Owatona Inc, v. Town of Harrison-

Maine statute provides a property tax exemption for non-profits incorporated in the state, but denied exemption for those conducted for benefit of non-Maine citizens. Law struck down as facially D ( 5-4). If the law were to prohibit out of staters from using charities in Maine altogether, it would be struck down

Extraterritoriality-

State A can’t regulate commercial activities going on in state B UNLESS they have a legitimate local interest that is being protected

Brown Forman Distillers v New York-Ct

Ct struck down law which had the effect of controlling liquor prices in other state b/c once a dealer posted his price in NY , he would not then be free to change it anywhere else in the US

Healy v The Beer Institute-

- Ct struck down a law requiring Conn. Beer distributors to certify that the price they were charging was not at that given moment higher than the lowest price charged in any adjoining state.

Exceptions to the DCC

MPE, subsidy, Congressional consent, quarantine, No LRA

Reeves v Stake-

Sd law limiting who the state sells its cement to is ok. Private companies can decide who they sell their stuff to. Not a natural resource

White v Mass Council of Construction Employees-

Ok to require K’ers to hire % of locals. All were essentially the employees of the state.

No down stream regulation is ok-

1. South Central Timber v Wunnicke- Ak requirement on instate processing of wood was bad b/c it regulated stuff beyond their own business including foreign sales. NO hold title provisions

Court will be wary of restrictions on NR’s

1. Ne power v NH- State required the power producer that uses the river to keep power in state. Court strikes it down ( down stream or NR though?)
2. Sporhase v Nb- Ban on export of ground water is also bad. Could be ok in a time of need but that was not the situation here-

Exception for regulations on the channels/instrumentalities-

- If the state owns the roads, then they will probably not be able to D against out of staters as it will be too much of a interference with ICC

Exception to the subsidy exception

rebate/refund from a tax- West Lynn Creamery v Healy- State can’t tax all milk sales and then give a rebate to dairy farmers. Here the subsidy is more a tax on out of staters

Congressional Consent exception

Must be a clear statement

Prudential Insurance v Benjamin

Congress ok’s blatant D against out of staters

Challenge to Congressional consent under DCC

In order to be ok the excepted law must be rationally calculated to advance a legitimate state interest

Met Life v Ward-

1. Promotion of local business is not a legitimate state interest for EP= Met Life v Ward- Court strikes the application of law ok’d in PI v B as an EP violation

Quarantine exception-

OK to prohibit traffic in noxious articles but it Must cause problems while being transported not after arrival

Chemical Waste Management v Hunt-

Must prohibit traffic of noxious articles regardless of origin(Chemical Waste Management v Hunt- Hazardous wastes can’t be kept out of state under QE b/c people in the state were allowed to move it)

No less restrictive approach-

a. Maine v Taylor- Ct upholds a D rule banning the import of out of state baitfish. Legitimate environmental purpose- Uncertainty about possible ecological effects on the possible presence of parasites and non-native species and this is probably the only way to do this

oVERRULLED EXCEPTIONS

a. Wild Game- From Geer, overruled in Hughes
b. Domestic charity excpetion- OR in Camps Newfoundland
c. Water Export Restriction Exception- No in Sporhase, but ok in times of severe shortage
d. Liquor Regulation Exception: - no in Bacchus
e. Struggling Industry Exception-Bacchus

Three part analysis FOR P & I

a.Does the P & I apply-Must be d BY states and applied to out of staters
B.Is the D with respect to a fundamental right?
C.c. Balancing- Test- Does the state have a substantial reason for the discrimination and is there a close relationship between the means and the ends.

. Look to factors like LRE’s and whether the state is spending its own money. In targeting non-residents they must be the source of the problem

Court of Nh v Piper-

State can’t limit bar admission to only in staters. LRE’s

Camden case-

- Court strikes down local’s % under P & I. P & I applies to cities, denies the MPE and remands for a determination of whether there is a substantial reason for the D

Hicklin v Orbeck-

Ct strikes down an Ak law requiring that contractors have to hire Ak’ns to work on the oil pipeline. Fails the M/E analysis- Reason for unemployment was a lack of training and not a lack of jobs.

Two kinds of preemption

Express & implied

Express preemption

Federal law expressly calls for displacement of state laws- Battle in these cases is over the scope of federal displacement

Cippolone v. Liggett Group-

Ct holds that law preempting any requirement based on smoking/health with respect to advertising preempted state tort law regimes for failure to warn, but did not preempt other claims not based the failure to warn

Two kinds of implied preemption

Conflict & Field

Conflict preemption-

Two kinds-
1. Physical impossibility
2. Creating an obstacle to the accomplishmant and execution of the full purposes and objectives of COngress. ( ID the federal objective? Determine to what extent the state law interferes with the federal regulation?)

Burbank v Lockheed-

Local ordinance restricting take off/landing times preempted by the FAA b/c it limited the flexibility of the Feds

Silkwod v Kerr McGee Corp-

Punitive damage for injury in nuclear plant. Feds did not intend to displace state tort regimes and punitive damages will only make it safer

Field preemption-

Where Congress clearly intended to occupy the field even a non-conflicting state regulation dealing with an un-addressed aspect of the problem may be preempted. 4 factors for FP=
1. Is it something historically controlled by the states?
2. HOw pervasive is the rgulation?
3. What is the similarity between the state and federal law?
4. How significant is the need for federal unifirmity

(Rice v Santa Fe Elevator Corp)

1. Requires clear showing of congressional intent (Rice v Santa Fe Elevator Corp) but can be implied by the comprehensiveness of the federal regulation

PGE v State Energy Resources Commission

AEA preempted safety regulations but here the moratorium was based on economic reasons.

Broad powers of the president

EXECUTIVE POWERS SHALL BE VESTED IN THE PRESIDENT.Art 1 Section 2

Narrow powers of the president

CIC of the armies, pardon power, make treaties, appoint ambassadors, public ministers and consuls, judges, fill vacancies that may happen during the recess of the senate

Even though it was authorized by C, the Pres exceeded his power by using the LIV. Here the law violated the presentment clause

III. Foreign Affairs power-

- There is a broad delegation of power to the Pres in foreign affairs- Present a unified face-

US v Belmont-

a. Executive agreements take precedent over state policy

Frankfurter in SS

Look to the history of the proposed action, if it is one where the Congress has allowed it in the past then it is likely Con

Curtiss Wright-

Sutherland says that Congress can give broad powers to the president in dealing with foreign affairs

Dames & Moore v Regan¬

Pres could cancel claims/attachments against Iran as part of the IHC. Long history of this type of action

War powers resolution

i. Pres can introduce troops on a declaration of war, statutory authorization or national emergency
ii. Must submit report to Congress within 48 hours and they will decide on it within 60 days unless they 1)declare war, 2)Extend the period, or 3) Congress is physically unable to mmet

Ex PArte Merryman

Taney says lincoln can't suspend HC

US v Milligan

ii. Citizens on US soil during times of war probably have a right to a regular trial
1. US v Milligan- Might have been different if he was an EC or in a zone of conflict

1. Ex Parte Quirin-

iii. Unlawful EC’s can probably be tried by military tribunals
1. Ex Parte Quirin- Germans/americans who landed to sabotage the war effort could be tried by MT’s

Johnson v Eisentrager)

If they never get to US soil then they can not get HC

( Rasul v Bush

2. Gitmo counts as Us territory ( Rasul v Bush- Gitmo is under complete and total US control)-

1. HAmdi v Rumsfled

- Use M V E to determine how much proc they get, but Hamdi gets an Art III court b/c he is a citizen and the gov’t has not tried him yer

(Padilla)

HC petition needs to be the person in charge of where the person is being held

1. Hamdan v Rumsfeld-

- UCMJ and Geneva require that the MT’s live up to a Cm unless impractical and that the court be RC and neither of these are met here

Leg response to Hamdan-

1. MT’s are RC and do not need to live up to CM, NO HC for non citizen UEC;s or person’s awaiting determination ( Can they do this?), changed procedures-

Non-delegation power-

NO law has been struck down since 1936 but generally Congress can only create agencies to execute the law as long as they have standards and rules to go by

Legislative veto-

Once Congress has delegated rule making power to the executive then they must abide by their decisions or withdraw the authority

INS v Chadha-

Congress can’t retain control over INS’s decisions. Violates bicameralism and the presentment clause.

Bowsher v Synar

Congress can’t reserve the power to remove executive officers except through impeachment. Congress can’t keep control over the comptroller b/c he is an executive officer and therefore only removable by impeachment. Also Congress was overreaching.

i. Buckley v Valeo-

Congress can delegate the authority to appoint IO’s but if they appoint them they can only perform functions similar to Congress/

i. Past test for presidential removal of purely executive officers

President had unrestricted power ( Myers v US- Postmaster case, Humphry’s Executor- FTC were not purely executive officers so president’s right to fire was limited

Wiener

Pres can't remove non-purely executive officers unless the COngress has conveyed the right to do so

Present test for removal of purely executive officers

Congress can limit the president's ability as long as it will not interfere too much with his ability to do his job. Look for people whose job function will work better if they are independent from the president

a. Mistretta v US-

- Ok to delegate power to set sentencing guidelines to Court b/c this is what they do already

Legislative immunity

Art 1 §6 Speech and debate clause-Gives absolute immunity for anything said on the floor of the leg. Brewster case- No immunity for taking a bribe to pass a law, or Hutchinson- For civil suit based on press release about a bill

II. Judicial immunity-

Absolute immunity for official acts

Executive privilege

President has a qualified privilege not to testify in front of a GJ. has to be a compelling need for the administration of justice in order to overcome the president's need. US v Nixon

Exception to qualified immunity for executive privilge

NATIONAL security issues, military, diplomatic issues

Presidential Campaign Activities v Nixon)

President does have a privilege to refuse to give stuff to a Congressional committee

Nixon v Fitzgerald-

i. President has absolute immunity from civil suits for $ damages while acting in the official capacity. Dissent wants a test of interference with the executive function

(Harlow v Fitzgerald)

1. Other executive officers get a qualified immunity which may be lost if they violate a clearly established right either intentionally or negligently

Clinton v Jones-

ii. No presidential immuity for non-official acts- Defending a civil suit will not interfere too much with the executives functions

Impeachment- Debate over what constitutes other high crimes/misdemeanors-

Serious indictable acts( Textual argument), Abuse of power and trust, Only public/official acts (Clinton), Protecting the public. Lower threshold for judges than for presidents

Considerations for political question J

a. Textual (Resolution demonstrably committed to a particular branch),Mix-( there must be some sort of judicially manageable standard), Prudential(Resolution of the issues would be too controversial, produce enforcement problems, or result in embarassament to the judiciary

Walter Nixon v US

- Textual commitment to the Senate, and the words do not put an identifiably textual limit on the authority in the same way that Powell did White-Some aspects (definition of HCs/MD’s) may be justiciable. Souter- Can’t be too arbitrary

Requirements for case/conroversy

Concrete
Not-moot
Ripe
Standing-
Con requirements- Injury, causation, redressability
Prudential-No generalized grievances, must be in the zone of interests, No third party standing

1. No third party standing-

∏ must assert his own rights UNLESS there is some genuine obstacle to a person with first person standing bringing the suit themselves and a close relationship between them(Abortion doctors) OR if the law would make the person violate the con rights of the injured person. Associational standing-1. Members have standing, 2. Association's purpose is germane to teh interests in the case 3. NO need for individual members

b. Question can not be moot

A subsequent event can make the suit pointless ( Diffunes- AA Case)

i. Exception to the mootness doctrine

1) Capable of repetition yet evading review( Roe v Wade- Must be a potential future injury to that particular ∏), 2) Cessation rule- ∆ can’t quit it and avoid the case unless there is no chance of future repetition

c. Ripeness-

Matter must be sufficiently well developed and non-speculative

United Public workers v Mitchell-

Threat of getting in trouble for campaigning was not enough-)

Exception to the ripeness dctrine

- Can challenge a law seeking a DJ if there is an immediate threatened injury. This could have worked in Mitchell if they had been more specific)

Arlington Heights

- Developer can sue even though his ability to build is contingent

Us v Richardson-

- CIA challenge=too generalized

Frothingham v Mellon-

- Challenge to tax power is too general

Exception to taxpayer standing

municipal taxpayers, establishent clause (Flast) as limited by (valley Forge- no problem with the giving of property)

FEC v Akins-

3. If harm if concrete and widely shared then it might be ok- Informed voting is so important that a law that affects this can be challenged by voters

Lujan v Defenders of Wildlife-

4. Congress can’t grant generalized standing- There must still be a redressable, injury that was caused by the violation- Lujan v Defenders of Wildlife- Claimed injuries are too speculative, not redressable, and violates separation of powers.

Raines v Byrd-

Congressman did not have enough of an injury by the LIV- Different than Coleman where action ended up making vote not count

iii. Within the zone of interests

The ∏’s complaint must fall into one of the interests to be protected or regulated by the statute or constitutional guarantee in question-

iv. Warth v Sedlin-

Court goes through the different ways that standing was not avaialable. Problems of causation and redressability

Slaughterhouse cases

P or I clause only applies to privileges of citizens of the US ( limited list of rights), DP clause does not apply b/c not property has been taken ( liberty?), and b/c EP only applies to freed slaves

Functionally Murphy’s rule has won out= All protections have been adopted e/c jury trial in a civil case, 2d/3d amendments, GJ indictment

d. Jot for jot incorporation-

- Same rights in state courts as in national courts? For the most part the answer is yes- E/C Unanimous jury verdicts ( Apodaca v OR) & 12 person juries ( Williamson- 6th amendment right does not require a 12 person jury

a. Rise of E/SDP-

Court used the DP clause to strike down laws that impinged on the right to K, Also found that coprs are considered people under the 14th amendment (Santa Clara-

i. Lochner v Ny-

Court struck down a maximum hours law for bakers as being burden on freedom to K- State goals are not legitimate so the interference is not ok

b. Decline of E/SDP

Court now only looks to see if there is a rational basis for passing the law. Very deferential standard-

i. NEbbia/West Coast Parish/Lee optical-

Court upholds even silly laws that the state has a rational basis for passing= Public health is a strong reason for passing the law

cAROLENE PRODUCTS

Laws get a presumption of constutionality and RB review UNLESS

Carolene footnote 4

- Court will okay the law if there is a rational basis
a. UNLESS ( Footnote 4)
i. IT IS A LAW THAT INTERFERES WITH INDIVIDUAL RIGHTS PROTECTED IN THE BOR
ii. IT RESTRICTS THE ABILITY OF THE POLTICAL PROCESS TO REPEAL UNDESRIABLE LEGISLATION
iii. LAW D’S AGAINST A DISCRETE & INSULAR MINORITY

Rational basis test

Is the law rationally related to a legitimate state interest?

When does rational basis apppy?

Economic cases, non-fundamental rights

Strict scrutiny

Law will be upheld if the state has a compelling interes and the law is the least restrictive and discriminatory way to protect the interest

When does SS appply?

Fundamental rights

NOn fundamental rights-

Kelly v Johnson- Right to long hair as a cop, Whalen v Roe- Right not to have the state collect information about your medicines, Deshaney- Right to get protection from the state for your kids

a. Precursors to Griswold=

Pierce- Right to choose whether your kids go to public school, Meyer v Nb-Right to control kids education ( German)

b. Griswold- Douglas-

- Penumbras and emanations from the BOR create zones of privacy which includes the right of married people to get contraceptives Harlan- Society can legislate on moral issues, but will be subject to strict scrutiny when impinging on fundamental right of marital privacy.Goldberg thought that the 9th amendment protected these rights

Eisenstadt

Extended griswold to non-married people

Abortion test

Does the law create an undue burden on the ability to get an abortion?

Roe test-

Court used a strict trimester approach and found that the states interest is too low in the 1st but rises as the fetus approaches viability

Definition of an UB from cASEY

Undue burden='s If the law's purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the time of viability-

iii. State is not required to fund/help with an abortion

-Maher(Failing to fund an abortion does not impinge of the ability to get one and the law passes a rational basis test) Harris-OK not to pay even in some medically necessary cases ( not life threatening ones) Rust- Ok to restrict funds to places that talk about abortion- Not an undue burden. Webster- Ok to ban state employees from doing abortions and allowing a doctor to exercise their judgment as to whether the fetus is viable

sTENBERG V CARHART

Failing to include a health excpetion in a ban on D & X's places an UB on the woman's right to an abortion

Right to live together

fOR FAMILIES (mOORE), NOT FOR FRIENDS (bELLE TERRE) OR FOR bUSINESS ASSOCIATIONS (JAY CEES)

tROXEL

Fundamental right to control who gets to see your kids ( not for parents)

iii. Michael H case

- No fundamental right for illegitimate father of child- Not traditionally recognized. Came down to who gets to characterize the interest

Loving

Interracial ban = bad

Zablocki

Can’t stop marriage for non-child-support payers. State interest must be sufficiently tailored and supported,

Turner

Prisoner’s right to marry,

Califano v Jobst

- Ok to cut off disability benefits for women who get married

Lawrence v TX

Court overrules Bowers v Hardwick to find that gay men have the right to have sex. Court looks to spatial concerns in Griswold, to right to reproductive choices (casey/romer)

Cruzan

Fundamental right to refuse medical treatment

Wa v Glucksberg

No fundamental right to PAS. Tradition, political rejection and state’s legitimate interests make this no fundamental right=

Four reasons to overule precedent from Casey

a. If the decision has proven unworkable- This is not present here, there has been questions but they have all been within the capacity of the court
b. Is there reliance of the decision- This is usually brought up in the commercial arena, but women have relied on their ability to choose in ways that affect their life decisions
c. Have related areas of law developed in ways that leave the con foundation behind- No, the decision in Roe was based on Griswold, and those cases have been upheld
d. Have the facts changed so much that the rule is robbed of its significant application or justification- No the ability to get viability earlier and to make an abortion safer has changed somewhat but there has been no significant change in the facts underlying the decision

Two step process for PDP

HAs there been a deprivation of life liberty and property?
If sO, WHAT PROCESS IS APPRORIATE?

New property

Concept of new property states that certain benefits confer the right to DP . Look to the state law to see if it conveyed this

Whose law determines if there is a property interest?

state law

Loudermill

i. State law determines if there is a fundamental right BUT THE CON DECIDES THE PROCEDURES THAT ARE DUE-Cleveland Board of Ed v Loudermill

M V E test

a. nature of the Private interest affected?
b. Risk of erroneous deprivation of such interests through the procedures used and the probable value of any additional safeguards-?
c. Gov'ts interests including the burden that would be imposed by adding additional procedural safeguards?

goss v Lopez

No need to get a hearing before being temporarily suspended from school-